I just received the nth NDA (argh!) to sign from an agency, so I started reading it and... it's actually not the 'usual' NDA I'm used to, but rather a "Proprietary information and inventions agreement". To have a better idea, you can find a very similar text scrolling down a bit here.

As you can see, that's a confidentiality + IP agreement originally connected to a position as employee (there are a bunch of other versions here). They just did a global search&replace for employment>engagement and changed some other details...

That aside (which in my opinion already isn't a good thing per se), I'm also quite perplexed by the mention of "associates" (as additional counterparts) , "inventions" (1.2), "third party information" (1.3), by the sections "obligation to keep company informed" (2.4), "enforcement of proprietary rights" (2.5), "successors and assigns" (9.3), "survival" (9.4 - basically perpetual...) and by the introduction of a new section extending right of enforcement to "third parties".

Any feedback/input?

[Edited at 2017-06-21 00:26 GMT]

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Tom in LondonUnited Kingdom Local time: 03:02Member (2008) Italian to English

No

Jun 21, 2017

Mirko Mainardi wrote:

Any feedback/input?

Q. Would you sign this?
A. No.

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Mirko Mainardi wrote:
I just received the nth NDA (argh!) to sign from an agency, so I started reading it and... it's actually not the 'usual' NDA I'm used to, but rather a "Proprietary information and inventions agreement".

You might reason that none of what you sign, will apply to you, if it doesn't apply to you, but it's safer not to sign an NDA that doesn't apply to you. Simply tell the client that he sent you the wrong NDA to sign (-:

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OK, so basically, what I didn't like is:
1) The fact the agreement wasn't specifically drafted for this type of collaboration, but rather re-purposed from something apparently used for (high-level) employment.
2) That the confidentiality bond is extended to "officers, employees, shareholders or associates" "of the Company, and any person" I'm basically providing my services to or receiving information from, including "any provider of third party information" and other "persons or entities notified by the Company". That could basically be anyone and their mothers (quite literally, according to the external regulation mentioned in that passage).
3) The mention of "inventions" as part of "proprietary information".
4) The fact that I should "procure" licenses for my "previous inventions" or "fully indemnify and hold harmless the Company in respect of any loss or damage arising from unlawful use by the Company of such Prior Inventions". That "I will not incorporate or permit to be incorporated. Prior inventions in any Company Inventions without the Company’s prior written consent".
5) The fact that I should "promptly disclose to the Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I will promptly disclose to the Company all patent applications filed by me or on my behalf ...".
6) Likewise, the fact that I should assist the Company and the bunch of other people mentioned before "in every proper way to obtain, and from time to time enforce, all Proprietary Rights in any and all countries. To that end I will execute, verify and deliver all such documents and perform all such other acts (including appearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining, enforcing, protecting and resisting objections or opposition to obtaining or petitions or applications for revocation of any such Proprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of such Proprietary Rights to the Company or its nominee. My obligation to assist the Company with respect to the Proprietary Rights in any and all countries shall continue beyond the termination of my engagement, but the Company shall compensate me at a rate determined by it after the termination of my engagement for the time actually spent by me at the Company’s request on such assistance".
7) That "This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors and its assigns".
8) That "The provisions of this Agreement shall survive the termination of my engagement and the assignment of this Agreement by the Company to any successor in interest or other assignee".

I guess most people just sign away and nothing ever really happens, but all of the above sounds quite frankly exaggerated and taxing for the simple provision of translation services in a non particularly 'sensitive' setting.

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Mirko Mainardi wrote:
I just received the nth NDA (argh!) to sign from an agency, so I started reading it and... it's actually not the 'usual' NDA I'm used to, but rather a "Proprietary information and inventions agreement".

You might reason that none of what you sign, will apply to you, if it doesn't apply to you, but it's safer not to sign an NDA that doesn't apply to you. Simply tell the client that he sent you the wrong NDA to sign (-:

Good point Samuel. At first I had thought something along those lines. That is, telling them the NDA they sent me doesn't actually seem to reflect the terms and scope of our prospective collaboration... but my experience is these guys aren't willing to discuss modifications of their agreements on an individual basis. And even if they were, discussing such matters is extremely complex and time consuming, so they should just be accepting your proposed changes (or alternative stipulation)...

Just a couple weeks ago I told another agency that I would sign their NDA if they changed the 10 years expiration term to something more reasonable, like 2 or 3 years, and removed the part about IP, that didn't belong there, basically reverting back to the same NDA I had already signed with them a few years ago. Well, guess what? "That is our standard agreement"...

In both cases, the one this thread is about, and the one I mentioned above, the companies in question have a very positive BB rating (if that is an indication of anything...).

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I would send them a generic sample DNA of the kind you signed other companies in the past. Ask them to send something similar that pertains only to non-disclosure and only between you and them. I agree with Samuel, don't sign a document that does not apply to you if you are not comfortable with it.

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I've had to sign weird and wonderful NDAs from corporate clients in the past, but nothing like this. I'm particularly curious about the "heirs and successors" thing - this would not be legal in very many jurisdictions, I'm sure. What law is (allegedly) governing this NDA?

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Mair A-W (PhD)Germany Local time: 04:02Member (2016) German to English + ...

DNA sample

Jun 22, 2017

Tina Vonhof wrote:

I would send them a generic sample DNA of the kind you signed other companies in the past. Ask them to send something similar that pertains only to non-disclosure and only between you and them. I agree with Samuel, don't sign a document that does not apply to you if you are not comfortable with it.

I would certainly not expect a DNA sample to be required for a translation contract... (although possibly with the "heirs and successors" mention it is relevant after all?)

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but a clinical trial contract usually entered into between a principal investigator (Contractor) and the hospital or another clinical institution providing the trial infrastructure and/or the contract research organization. The terms "invention", "heirs and successors", etc., are used in this type of contracts that inter alia lay down non-disclosure provisions. The agency in question obviously has no legal department or a competent lawyer, who would be able to choose proper wording. I would not sign this NDA as the agency seems to be a joke.

[Edited at 2017-06-22 11:30 GMT]

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I've had to sign weird and wonderful NDAs from corporate clients in the past, but nothing like this. I'm particularly curious about the "heirs and successors" thing - this would not be legal in very many jurisdictions, I'm sure. What law is (allegedly) governing this NDA?

Hi Robin, thanks for your reply

Yeah, the agreement, taken in its entirety, seems inappropriate to me as well for a vendor-client relationship, as its clauses seem to assume a relatively strict hierarchical subordination (e.g. "obligation to keep company informed", obligations vs. third parties, obligation to assist the company in "enforcing proprietary rights", etc.), which I believe could perhaps be justified in case of employment.

As for the "heirs and successors" part, actually, I've already seen that elsewhere (still related to confidentiality), and, if taken by itself, I don't have big issues with it (I believe it's rather common in general, see for instance here). For instance, take a case where you have confidential and/or sensible materials about a particular IP/Company. It would stand to reason that those should not be disclosed by your "heirs, executors, administrators and other legal representatives, etc.". However, in my opinion the problem here is that these confidentiality obligations are theoretically 'perpetual', as no expiration term is stated, but on the contrary "shall survive the termination of my engagement and the assignment...".

At any rate, to answer your question, English law would govern that agreement.

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I would send them a generic sample DNA of the kind you signed other companies in the past. Ask them to send something similar that pertains only to non-disclosure and only between you and them. I agree with Samuel, don't sign a document that does not apply to you if you are not comfortable with it.

Thank you Tina. That's probably what I will do (just have to find a simple and clear enough NDA among those I signed...).

At any rate, it seems to me the PM used the word "NDA" mistakenly, as I guess the client would like to use that agreement as an NDA+SLA, although in my opinion it basically falls short on both counts...

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but a clinical trial contract usually entered into between a principal investigator (Contractor) and the hospital or another clinical institution providing the trial infrastructure and/or the contract research organization. The terms "invention", "heirs and successors", etc., are used in this type of contracts that inter alia lay down non-disclosure provisions. The agency in question obviously has no legal department or a competent lawyer, who would be able to choose proper wording. I would not sign this NDA as the agency seems to be a joke.

[Edited at 2017-06-22 10:40 GMT]

Thank you for your comment. Yes, I too believe "NDA" is a misnomer here.

As for the agency, I obviously have never worked with them before, but, as I was saying, they have a nearly perfect rating on the BB (and pretty good reviews on Glassdoor). Given the relatively big size of the company, it seems quite weird that agreement should be the result of a lack of resources to draft a more fitting one, as opposed to a reasoned choice... (but I don't know which would be worse)

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